[Senate Report 108-403]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 794
108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-403

======================================================================
 
  PROVIDING REFORMS AND RESOURCES TO THE BUREAU OF INDIAN AFFAIRS TO 
  IMPROVE THE FEDERAL ACKNOWLEDGEMENT PROCESS, AND FOR OTHER PURPOSES.

                                _______
                                

                November 10, 2004.--Ordered to be printed

  Filed, under authority of the order of the Senate of October 11, 2004

                                _______
                                

   Mr. Campbell, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 297]

    The Committee on Indian affairs to which was referred the 
bill (S. 297) to provide reforms and resources to the Bureau of 
Indian Affairs to improve the Federal acknowledgement process, 
and for other purposes, having considered the same, reports 
favorably thereon with an amendment in the nature of a 
substitute and recommends that the bill (as amended) do pass.

                                PURPOSE

    The primary purposes of S. 297, the Federal Acknowledgment 
Process Reform Act of 2004, are: to ensure that in any case in 
which the U.S. acknowledges an Indian tribe through an 
administrative process, it does so with a consistent legal, 
factual, and historical basis; to require the U.S. to use clear 
and consistent standards in its review of documented petitions 
for acknowledgment; and to clarify evidentiary standards and 
expedite the administrative review process for such petitions 
by establishing deadlines for decisions and authorizing 
sufficient resources to the U.S. to process petitions.

                               BACKGROUND

A. Federal Acknowledgment of Indian Tribes

    By recognizing an Indian group as an Indian tribe, the U.S. 
acknowledges the tribe's sovereign status and the existence of 
a formal government-to-government relationship between itself 
and the tribe.
    Once a group is acknowledged as a tribe, it may avail 
itself of Federal assistance, services and programs that are 
enacted for the benefit of Indian tribes and their members.
    In addition, the tribe is entitled to the enjoyment of all 
the privileges and immunities that all Federally-recognized 
tribes enjoy.
    Throughout its history and at various times, the U.S. has 
extended recognition to Indian tribes through treaties, by 
Federal statute, or through administrative decisions by the 
Executive branch.
    The U.S. Department of the Interior has been granted broad 
authority pursuant to 25 U.S.C. Sec. 2 to handle Indian 
affairs, including the function of tribal recognition, and it, 
in turn, has delegated the authority for the review of 
petitions submitted by tribal groups seeking Federally-
recognized status to the Office of Federal Acknowledgment (OFA) 
\1\ within the Bureau of Indian Affairs (BIA). The regulations 
for the Federal Acknowledgment Process (FAP) are contained at 
25 C.F.R. Part 83.
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    \1\ Formerly known as the Branch of Acknowledgment Research (BAR).
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B. Federal Acknowledgment Regulations

    The regulations setting forth the criteria applicable to 
assess whether a tribe is entitled to Federal acknowledgment 
were first promulgated in 1978,\2\ and have remained 
essentially unchanged since then, with the exception of certain 
revisions clarifying the evidence needed to support a 
recognition petition (1994),\3\ updated guidelines on the 
process (1997), and notices articulating BIA's internal 
processing procedures (2000).\4\
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    \2\ 43 Fed. Reg. 39361 (Sept. 5, 1978).
    \3\ 59 Fed. Reg. 9280 (Feb. 25, 1994).
    \4\ 65 Fed. Reg. 7052 (Feb. 11, 2000).
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    The BIA regulations establish seven mandatory criteria--
each of which must be met before a group can attain Federally-
recognized status. These criteria are:
    A. The petitioner has been identified as an American Indian 
entity on a substantially continuous basis since 1900.
    B. A predominant portion of the petitioning group comprises 
a distinct community and has existed as a community from 
historical times until the present.
    C. The petitioner has maintained political influence or 
authority over its members as an autonomous entity from 
historical times until the present.
    D. The group must provide a copy of its present governing 
documents and membership criteria.
    E. The petitioner's membership consists of individuals who 
descend from a historical Indian tribe or tribes, which 
combined and functioned as a single autonomous unit.
    F. The membership of the petitioning group is composed 
principally of persons who are not members of any acknowledged 
North American Indian tribe.
    G. Neither the petitioner nor its members are the subject 
of congressional legislation that has expressly terminated or 
forbidden recognition.
    An Indian group seeking recognition must demonstrate that 
its members are related genealogically to one another and that 
they have existed as ``a distinct community . . . [and that the 
tribe] has maintained political influence or authority over its 
members . . . from historical times until the present.'' \5\
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    \5\ See 25 C.F.R. 83.7.
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    The technical staff within OFA consists of anthropologists, 
genealogists, and historians, and this staff reviews the 
petition and submitted documents, provides technical review and 
assistance to the petitioner, and, with concurrence of the 
petitioner, determines when the petition is ready for active 
consideration.

C. The General Accounting Office Report

    The General Accounting Office (``GAO'') prepared a report 
in November, 2001,\6\ which found that as of 2001 the OFA has 
received 250 petitions for recognition but only 55 contain 
sufficient documentation to allow them to be considered and 
reviewed by OFA staff.
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    \6\ INDIAN ISSUES: Improvements Needed in Tribal Recognition 
Process, U.S. General Accounting Office, Nov. 2001.
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    For these documented petitions, BIA has finalized 29 
decisions, 14 resulting in the recognition of the petitioning 
tribe, and 15 denying recognition. The GAO report also 
indicates that it may take up to 15 years to resolve petitions 
currently awaiting active consideration based on the OFA's past 
record of issuing final determinations--even though the 
regulations establishing the process assume approximately two 
years from the point of active consideration to final 
decision.\7\
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    \7\ Id. at 15-16.
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    The GAO report chronicles the increase in the workload of 
the OFA while noting the decrease in resources available to 
address these issues. BIA staff have reported that the 
petitions which are under review are becoming more detailed and 
complex as petitioners and interested parties commit more 
resources to the process, often resulting in massive amounts of 
documentation submitted by the petitioner and interested 
parties.

D. Discussion During the 107th Congress

    During the 107th Congress, several bills were introduced 
including S. 1392 \8\ and S. 1393 \9\ and referred to the 
Committee on Indian Affairs for further consideration.
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    \8\ See S. 1392, 107th Cong. (2002).
    \9\ See S. 1393, 107th Cong. (2002).
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    These bills primarily sought to provide more resources for 
all participants in the FAP, particularly for local governments 
that have or may have an interest in a petition submitted to 
the OFA.
    For instance, S. 1392 would have provided a significantly 
changed ``burden of proof''--the ``more likely than not'' 
standard--and required that a petitioner meet this new 
standard--a standard against which the OFA's recommendations 
would be measured. This burden of proof is commonly required in 
civil adjudicatory proceedings. S. 1392 would have also 
provided formal, on-the-record administrative adjudicatory 
hearings, where that burden of proof would be tested.
    At a hearing held on September 17, 2002, the BIA strongly 
opposed both S. 1392 and S. 1393.\10\ The BIA also opposed any 
attempts to alter the criteria used to analyze petitions, 
including significant changes to the types of evidence and 
burden of proof required.
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    \10\ See Hearing on S. 1392, to Establish Procedures for the Bureau 
of Indian Affairs of the Department of the Interior with respect to 
Tribal Recognition, and S. 1393, to Provide Grants to Ensure Full and 
Fair Participation in Certain Decisionmaking Processes at the Bureau of 
Indian Affairs, Before the Senate Committee on Indian Affairs, S. Hrg. 
107-775, 107th Cong. at p. 43 (2002) (Testimony of Aurene M. Martin, 
Deputy Assistant Secretary, Indian Affairs, Department of the 
Interior).
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E. Introduction of S. 297

    For years, FAP reform has occupied significant time and 
attention of the Committee. S. 297 was drafted after careful 
analysis of the various bills and amendments offered and the 
hearings held during the 107th Congress and previous 
congresses. These proposals and discussions offered a number of 
different perspectives on what reforms to the FAP were 
necessary and proper. The common thread of these views was that 
the FAP needed greater transparency, consistency and integrity, 
as well as additional resources in the form of additional 
funding and technical expertise.
    S. 297 was introduced to increase the transparency, 
consistency and integrity of the acknowledgment process, as 
well as augment resources available to the OFA. The bill 
provides:
          1. A statutory basis for the acknowledgment criteria 
        that have been used by the OFA since 1978;
          2. Additional and independent resources to the 
        Assistant Secretary-Indian Affairs for research, 
        analysis, and peer review of petitions;
          3. Additional resources into the process by inviting 
        academic and research institutions to participate; and,
          4. Much-needed discipline into the mechanics of the 
        process by requiring more effective notice and 
        information to interested parties to the process.

F. April 21, 2004, Legislative Hearing

    A legislative hearing on S. 297 was held on April 21, 2004. 
In preparation for that hearing the Congressional Research 
Service prepared a memorandum indicating that as of 2004, the 
OFA has received 294 petitions for recognition but only 57 have 
sufficient documentation to enable them to be considered and 
reviewed by OFA staff.
    For these completed petitions, BIA has finalized 35 
decisions, 16 recognizing a tribe and 19 denying recognition, 
with 3 decisions under appeals to the Interior Board of Indian 
Appeals. Of the remaining 22 petitions, 9 decisions are under 
active consideration--of which 4 decisions are pending Final 
Determinations; and 13 decisions are ready awaiting active 
consideration.
    At the April 21 hearing, the BIA testified that it was 
supportive of a more timely decision-making process, but 
expressed concern that the factual basis required to render a 
favorable decision should not be diluted. The BIA also 
indicated concern over narrowing the role of interested 
parties.
    In addition to the current BIA officials, two former 
Assistant Secretaries-Indian Affairs (AS-IA) testified.\11\ The 
overarching theme of their testimony pointed to three problems 
in the current administrative process:
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    \11\ See Hearing on S. 297, the Federal Acknowledgment Process 
Reform Act of 2003, Before the Senate Committee on Indian Affairs, S. 
Hrg. 108-534, 108th Cong. P. 52-56 (2004) (Testimony of Neal McCaleb, 
former Assistant Secretary, Indian Affairs, Department of the Interior 
(2001-3, Administration of President George W. Bush); and Testimony of 
Kevin Gover, former Assistant Secretary, Indian Affairs, Department of 
the Interior (1997-2000, Administration of President William J. 
Clinton)).
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          1. The length of time and duplicative research 
        required of petitioners to participate in the process 
        has slowed the process considerably;
          2. The exclusive reliance of the AS-IA on the OFA 
        staff, due to the complexity and volume of research 
        required of petitioners resulted in unnecessary 
        friction and perceived irrationality in recognition 
        decisions; and
          3. The extent, frequency, and duplicative nature of 
        FOIA requests to the BIA for documents submitted to or 
        accumulated by the BIA pursuant to petitions resulted 
        in a ``churning'' of document submissions and re-
        distributions by way of FOIA requests; this churning, 
        in turn, has resulted in a diversion of key, technical 
        staff from their intended roles as analysts.
    Both former AS-IAs concurred that streamlining the process 
and using outside and independent resources as provided in S. 
297 would greatly improve the timeliness and quality of the FAP 
decisions.
    The final witness to appear at the April 21 hearing, a 
traditional New Mexico Pueblo that first petitioned for 
acknowledgment in 1971, testified that it had appeared before 
the Committee four years earlier. At that time the Pueblo's 
petition was seventh on the OFA's waiting list; and its 
petition is still seventh on the list four years later.\12\
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    \12\ See id. at p. 51 (Testimony of Edward Roybal II, Governor, 
Piro Manso Tiwa Indian tribe).
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                          STATEMENT OF POLICY

    It is a long and well established principle of Federal 
Indian law, expressed in the U.S. Constitution, reflected in 
Federal statutes, and articulated by the Supreme Court in 
numerous decisions, that the U.S. has a special political 
relationship and a trust responsibility to Indian tribes. This 
special political relationship, or government-to-government 
relationship, and trust responsibility extends to recognition 
of Indian tribes that currently do not have, but are deserving 
of, the special government-to-government relationship between 
the Federal government and Indian tribes.
    The government-to-government relationship has been extended 
by treaties, Federal statutes, and through administrative 
decisions by the Executive branch. When Indian tribes are 
acknowledged, fulfillment of the trust responsibility 
necessitates timely review of petitions, consistent and fair 
criteria, and a process that is transparent and fundamentally 
fair.
    Fundamental fairness dictates that the long history of 
Federal-tribal relations and widely shifting Federal policies 
must be taken into account when petitions for acknowledgment 
are considered.

                AN OVERVIEW OF THE PROVISIONS OF S. 297

    S. 297, as approved by the Committee, provides a statutory 
framework for the United States to acknowledge Indian tribes 
through an administrative process with an informed and well-
researched basis for making such decisions. It further provides 
that the administrative process have integrity and be conducted 
in a timely, fair, consistent and transparent manner.

A. Criteria for Recognition

    The current FAP regulations listed above provide that each 
petitioner must meet mandatory criteria that, if proven, 
provide the basis for a decision by the BIA that such 
petitioner is an existing Indian tribe. S. 297 provides 
statutory codification to those regulatory criteria, and 
provides substantive guidelines to OFA, petitioners, and 
interested parties regarding probative evidence meeting the 
criteria.
    Essentially, if proven, these criteria demonstrate that the 
members of a tribe are related genealogically to one another 
and that they, as a tribe, have existed as a distinct community 
and that the tribe has maintained political influence or 
authority over its members from historical times until the 
present.
    The S. 297 Criteria. Section 5 of S. 297 requires that a 
petition for acknowledgment contain detailed, specific evidence 
of seven factors, or criteria. These criteria are practically 
identical to the criteria mandated in 25 C.F.R. Part 83.
    The first criteria required by S. 297 is that the 
petitioner establish that it has been identified as an Indian 
entity in the United States on a ``substantially continuous 
basis''.\13\ This corresponds to the existing FAP criteria 
``A'' listed above.
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    \13\ See S. 297 Sec. 5(b) (1).
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    The second criteria required by S. 297 is that the 
petitioner establish that it comprises a ``community distinct 
from the communities surrounding that community'' and has so 
existed throughout the historical period.\14\ This corresponds 
to the existing FAP criteria ``B'' listed above.
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    \14\ See Sec. 5(c)(1).
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    The third criteria required by S. 297 is that the 
petitioner establish that it has maintained political influence 
or authority over its members throughout the historical 
period--essentially that the entity has been politically 
autonomous.\15\ This corresponds to the existing FAP criteria 
``C'' listed above.
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    \15\ See Sec. 5(d)(1).
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    The fourth criteria required by S. 297 is that the 
petitioner provide, with its petition, a copy of the group's 
governing document.\16\ The governing document must include a 
description of the criteria for membership in the group and the 
governing procedures of the entity. This corresponds to the 
existing FAP criteria ``D'' listed above.
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    \16\ See Sec. 5(e)(1).
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    The fifth criteria required by S. 297 is that the 
petitioner provide, with its petition, a list of all members 
and a description of the methods used in preparing the 
list.\17\ The entity's membership list must consist of 
descendants of an Indian group, or Indian groups that were 
combined and functioned as a single autonomous entity, that 
existed during the historical period. This corresponds to the 
existing FAP criteria ``E'' listed above.
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    \17\ See Sec. 5(f)(1).
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    In addition to the five specific criteria required by S. 
297, certain groups or entities are ineligible to participate 
in the FAP.\18\ These ineligible groups or entities include:
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    \18\ See Sec. 4(b)(2).
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           Tribes already recognized;
           Groups, political factions, or communities 
        that separated from a recognized tribe, unless that 
        group, faction or community has functioned autonomously 
        throughout the historical period;
           Groups that, before enactment of this Act, 
        petitioned for and were denied or refused 
        acknowledgment based on the merits of the petition; and
           Any group whose relationship with the 
        Federal government was expressly terminated.
    The exclusion of these groups or entities substantively 
correspond directly to the existing FAP criteria ``F'' and 
``G'' listed above.

B. The Acknowledgment Process

    Letter of Intent. Pursuant to the framework established in 
S. 297, a petitioner initiates the acknowledgment process by 
submitting a letter of intent to the BIA that provides 
relevant, practical information about the petitioner. The 
letter of intent will provide the BIA and AS-IA with sufficient 
information to determine which persons or entities qualify as 
interested parties. Within 90 days of receipt of the letter the 
BIA must notify the petitioner and interested parties of the 
letter and whether the letter reasonably identifies the Indian 
group.
    Requirements and Evidence. On or after the date that an 
Indian group seeking acknowledgment files its letter of intent, 
it must file a petition with evidence that demonstrates its 
existence as an Indian tribe. The evidence must show with a 
``reasonable likelihood'' that each required criteria has been 
established by the petitioner.
    It is the Committee's intent that the evidentiary standard 
``reasonable likelihood'' be considered met if the AS-IA finds 
that it is more likely than not that evidence presented 
demonstrates the establishment of a particular criterion. This 
standard is the most commonly used civil adjudicatory 
evidentiary standard. The Committee finds that conclusive proof 
was never intended to be the evidentiary standard, and that the 
use of reasonable likelihood in this context is appropriate.
    Documented Petitions and Scheduling. Not later than 30 days 
after a documented petition is submitted to the BIA, the AS-IA 
must publish in the Federal Register notice of the receipt of 
the petition. This notice will include pertinent information 
for the public, including the name, location, and identifying 
information for the petitioner; locations at which a copy of 
the petition and related submissions may beexamined by the 
public; and procedures by which an interested party can submit its 
evidence or be kept informed of actions affecting the petition.
    Not later than 60 days after publication in the Federal 
Register of the notice of petition, the AS-IA is to consult 
with the petitioner and interested parties on a schedule for 
submission of evidence and arguments and publication of the AS-
IA's proposed findings with respect to the petition. The 
schedule should provide a reasonable time frame for all parties 
involved, including the AS-IA, to review the petition, submit 
evidence, and make arguments and counterarguments.
    Not later than 360 days after receipt of the documented 
petition the AS-IA must publish in the Federal Register his 
proposed determination, and his proposed findings supporting 
that determination, as to whether the petitioner is entitled to 
acknowledgment. If the AS-IA finds good cause, the publication 
date may be extended for up to 180 days.
    The Committee acknowledges that Sec. 4(d) of S. 297 places 
responsibility for improved discipline on all parties, 
including the OFA and AS-IA, to establish a schedule and meet 
the deadlines imposed. It is, however, the considered opinion 
of the Committee that increasing discipline in this way 
ultimately insures a fairer and more timely review process. All 
parties have an incentive to avoid dilatory tactics and 
contribute to a more fact-based dialogue. In pursuit of this 
goal, the Committee strongly encourages the AS-IA to strictly 
enforce the time lines provided in S. 297.
    The Committee also notes that Sec. 6 of S. 297 provides 
significant new resources to the BIA through the Independent 
Review and Advisory Board and the Federal Acknowledgment 
Research Pilot Project. These new resources will significantly 
expand the capacity of the OFA to review petitions. The 
Committee strongly encourages the BIA to use these resources 
upon passage of this Act.
    Lack of Evidence Caused by Past Official Federal or State 
Government Actions. S. 297 provides that, if the AS-IA 
determines that evidence necessary to prove or disprove a 
criterion is lacking due to any official or unofficial act of 
the Federal government or a state government, the AS-IA shall 
not make that lack of evidence the basis for a determination to 
not acknowledge a petitioner. It is the intent of the Committee 
that an Indian group should not be prevented from re-
establishing its government-to-government relationship with the 
Federal government due to sanctioned or unsanctioned acts of 
government agents committed pursuant to ill-conceived and now 
repudiated policies.
    Final Determination. After the proposed findings are 
published, the parties have ample opportunity to respond to the 
determination and proposed findings. The AS-IA has up to 360 
days after publication to issue a final determination. The 
final determination is to include all supporting facts and 
conclusions of law.
    If the final determination is made to acknowledge the 
petitioner, the AS-IA must notify the petitioner and interested 
parties, provide them a copy of the final determination, and, 
not later than 7 days after notifying the parties, publish a 
notice in the Federal Register of the final determination of 
acknowledgment.
    Judicial Review. If the final determination is made to 
decline to acknowledge the petitioner, the petitioner may, not 
later than 60 days after publication of the notice of final 
determination, seek judicial review in the Federal District 
Court for the District of Columbia. This judicial review does 
not prejudice the rights of any person to make a challenge 
pursuant to the Administrative Procedures Act, or other 
applicable law.
    It is the intent of the Committee that, in reviewing the 
actions and decisions of the BIA, consistent with longstanding 
Federal court precedent and Federal policy regarding 
interpretation of treaties and Acts of Congress, the Federal 
courts should construe this Act liberally in favor of the 
Indian group or tribe seeking judicial review.

C. Additional Resources

    Independent Review and Advisory Board. A significant new 
resource provided to the AS-IA in Sec. 6(a) of S. 297 is the 
Independent Review and Advisory Board (the ``Board''). The 
Board, which is appointed by the AS-IA, is composed of 
individuals with the same scientific disciplinary expertise as 
the staff of the OFA--anthropology, genealogy, history and 
jurisprudence.
    The Committee intends that the Board will provide the AS-IA 
assistance at two critical junctures in the petition review 
process. First, during the initial review process before 
issuance of proposed findings, the Board will be available to 
the AS-IA if:
           a petition or other evidentiary submission 
        raises unique issues or matters of first impression; or
           the AS-IA is unable to determine whether 
        sufficient evidence has been provided to establish one 
        or more criteria.
    In these instances, the AS-IA may request an opinion from 
the Board with respect to that petition.
    After the issuance of proposed findings relative to a 
petition, but before the issuance of the final determination, 
the AS-IA is required to obtain a review by the Board of the 
proposed findings to determine whether a deficiency exists with 
respect to one or more criteria. The review need not address 
the entire petition, however, as the AS-IA has the discretion 
to limit the scope of that review. Additionally, the Board may 
also limit the scope of its review under this provision to the 
evidence submitted or the proposed findings. The Board may also 
extend the review to evidence submitted by all parties, request 
that the AS-IA request additional submissions, and even 
recommend that the AS-IA hold formal or informal administrative 
proceedings to allow the Board to directly question and obtain 
information from all parties, including interested parties.
    It is the intent of the Committee that the Board provide 
the AS-IA with a useful, secondary peer review. It is also the 
considered opinion of the Committee that independent, secondary 
peer review will enhance the transparency, integrity and 
credibility of the FAP. The Committee also finds very 
persuasive the testimony provided by two former AS-IAs, 
praising the creation of anindependent advisory panel and 
secondary peer review to assist the AS-IA.
    Assistance to Petitioners and Interested Parties. During 
hearings on the Federal acknowledgment process held by the 
Committee over the past several years, several witnesses have 
expressed concern about the rapidly escalating costs of 
pursuing or opposing petitions and the need for economic 
assistance by petitioners and local governments.
    Often the only option available to financially destitute 
petitioners is to find a business partner willing advance 
financial resources and take the risk that a petition may be 
unsuccessful. Many petitioners do not even have that option and 
are simply unable to marshal the resources necessary to present 
their petition in a cogent manner.
    One solution to this problem is contained in S. 297, which 
authorizes the AS-IA to provide grants to petitioners or 
interested parties that demonstrate an economic need. To insure 
that they will be able to effectively participate in the FAP, 
at least one-half of the amounts appropriated for these grants 
are reserved for petitioners.
    Federal Acknowledgment Research Pilot Project. S. 297 also 
authorizes an additional new resource for the AS-IA to use in 
the FAP. The Federal Acknowledgment Research Pilot Project (the 
``Pilot Project'') authorizes the AS-IA to access independent 
research institutions to assist in researching, reviewing and 
analyzing petitions. Within three years, the AS-IA will report 
to Congress on the effectiveness of the Pilot Project.
    Under the Pilot Project, the AS-IA, in consultation with 
the Secretary of the Smithsonian Institution, will identify 
independent research institutions that have the academic and 
research capacity to efficiently and effectively assist in 
reviewing petitions. These institutions will be invited to 
submit proposals to participate in the Pilot Project, and if 
approved by the AS-IA, will receive a grant to assist the 
institution in participating in the Pilot Project.
    Through the Pilot Project the institutions will provide the 
AS-IA with additional resources for review of petitions and 
conclusions and recommendations based on that review. The AS-IA 
may then take any or all of those conclusions and 
recommendations into consideration in making a determination.
    The purpose of the Pilot Project is to access hitherto 
untapped academic and research resources and bring them to bear 
on the FAP. It is the intent of the Committee that the AS-IA 
have wide discretion in implementing and utilizing the Pilot 
Project, whether for additional petition review teams or for 
secondary opinions of internal agency review. It is also the 
considered opinion of the Committee that the Pilot Project will 
enhance the timeliness, consistency and credibility of the FAP.

D. Efficient Public Access to Petitions

    Over the past several years, the Committee has received 
formal and informal comments regarding the impact that repeated 
requests for information on petitions, pursuant to the Freedom 
of Information Act (``FOIA''), have had on the OFA. At the 
April 21, 2004, hearing the BIA testified that nearly forty 
percent of the professional staff time was occupied with 
responding to FOIA requests, diverting their time away from 
reviewing petitions.\19\ According to the same testimony, many 
of these requests are submitted even before a petitioner has 
submitted a complete petition.
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    \19\ See infra. at p. 50 (Testimony of Aurene Martin, Principal 
Deputy Assistant Secretary, Indian Affairs, Department of the 
Interior).
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    It is the intent of the Committee that the public continue 
to have access to the non-confidential information submitted to 
the BIA, and thus be able to observe the agency's actions. Such 
transparency is critical to public confidence in the FAP and 
the BIA. The Committee strongly believes that such goals are 
advanced by having a more efficient method for accessing that 
information.
    It is the considered opinion of the Committee that Sec. 7 
of S. 297 accomplishes the goal of more efficient and 
transparent information access, while at the same time 
affording the professional staff the necessary time to more 
efficiently and effectively review petitions and submissions.

E. Effects of Acknowledgment Decisions

    It is the intent of the Committee in Sec. 8 of S. 297, that 
each Indian tribe, acknowledged through the FAP, enter into its 
government-to-government relationship with the Federal 
government on an equal footing with all other Indian tribes. 
The Committee acknowledges, however, that the BIA and the 
Indian Health Service need adequate time to prepare their 
required programmatic and budgetary adjustments, including 
appropriations requests.
    It is the further intent of the Committee that 
acknowledgment of an Indian tribe, in and of itself, does not 
reduce, eliminate, or in any way affect any legal or property 
right of another Indian tribe or tribes.

F. Regulations

    Authority is given to the Secretary in Sec. 9 of S. 297 to 
promulgate regulations needed to implement this Act. Authority 
is also given to the Secretary to maintain and continue the use 
of those regulations in 25 C.F.R., Part 83, that are not 
inconsistent with this Act. The Committee strongly encourages 
the Secretary to utilize the authority to maintain the current 
regulations where possible.

                          LEGISLATIVE HISTORY

    S. 297 was introduced on February 4, 2003, by Senator 
Campbell, and was referred to the Committee on Indian Affairs.
    On April 21, 2004, the Committee held a legislative hearing 
on S. 297. Witnesses at the hearing included Aurene Martin, 
Principal Deputy Assistant Secretary-Indian Affairs, Department 
of the Interior, Edward Roybal II, Governor of the Piro Manso 
Tiwa Tribe, Neal McCaleb, former Assistant Secretary-Indian 
Affairs, and Kevin Gover, former Assistant Secretary-Indian 
Affairs.
    While each of the witnesses expressed either suggestions 
for different legislative language or concerns over particular 
provisions in the bill, all of the witnesses were supportive of 
the overall purposes and intent of S. 297. Many of those 
suggestions and concerns were addressed in the substitute 
amendment to the bill.
    On June 16, 2004, at a business meeting duly noticed, the 
Committee adopted a substitute amendment to S. 297 and, as 
amended, favorably reported the bill for consideration by the 
full Senate, with a recommendation that the Senate pass the 
bill.

  SECTION-BY-SECTION ANALYSIS OF THE ``FEDERAL ACKNOWLEDGMENT PROCESS 
                          REFORM ACT OF 2003''

Sec. 1. Short Title

    The Act may be cited as the ``Federal Acknowledgment 
Process Reform Act of 2003.''

Sec. 2. Findings and Purposes

    The Findings and Purposes relay the history of Federal and 
Tribal relationships and explain that the Act is intended to 
provide consistency, clarity and greater efficiency in the 
Federal Acknowledgment Process.

Sec. 3. Definitions

    The Act utilizes definitions that are already well accepted 
definitions in the existing FAP regulations or other Federal 
law dealing with Indian tribes.

Sec. 4. Acknowledgment Process

    The Act provides a statutory basis for the procedures 
whereby Indian groups are acknowledged as Tribes by the United 
States. The procedures provided in the Act are very similar to 
the current FAP procedures and include the following:
    Letter of Intent. Petitioning groups must submit a letter 
of intent. The required contents of this letter of intent are 
expanded under the Act to require more information to enable 
the Assistant Secretary-Indian Affairs (AS-IA) to provide a 
more comprehensive notice to interested parties about the 
petitioning group.
    Petitions. A petitioning group must submit a petition that 
establishes with reasonable likelihood that each criteria in 
Section 5 is met. Some groups, such as splinter factions, 
already-denied groups and legislatively terminated tribes, are 
ineligible to submit petitions.
    Notice of Receipt of Petition; Schedule. Within 30 days 
after receiving a documented petition, the AS-IA must publish 
notice of receipt of the petition in the Federal Register, with 
information about the petitioner, where the petition can be 
examined, and how interested parties can submit or obtain 
information. Also, within 60 days the AS-IA must, in 
consultation with the petitioner and interested parties, 
establish a schedule for the submission of evidence and 
arguments relating to the petition and when the proposed 
findings will be ready for publication.
    Review of Petitions. Generally the AS-IA must review and 
consider the petition and other materials submitted by the 
petitioner and interested parties, which must be noted in the 
final determination. Within 360 days, the AS-IA must publish 
the proposed findings in the Federal Register. The AS-IA may 
extend, for good cause, the publication date for up to an 
additional 180 days. Evidence from interested parties must be 
considered and noted by the AS-IA in the proposed finding or 
Final Determination.
    Final Determination. After review of the petition by the 
AS-IA, and after a petitioner and interested parties have had 
an opportunity to respond, the AS-IA must issue a final 
determination in writing with supporting facts and conclusions 
of law.
    Judicial Review. After publication of a notice of a final 
determination, a petitioner has 60 days in which to seek review 
in the District Court for the District of Columbia. This 
judicial review does not prejudice the rights of any person to 
make a challenge pursuant to the Administrative Procedures Act, 
or other applicable law.

Sec. 5. Documented Petitions

    Similar to current regulations, in its documented petition 
a petitioner must establish the following mandatory criteria: 
(1) an Indian identity; (2) that it comprises a distinct 
community; (3) that it has exerted political influence or 
authority over its members; (4) supply governing documents; and 
(5) a list of members, with requirements showing descent. 
Exceptions are made for Tribes that had treaties or Federal law 
designating them as Tribes.

Sec. 6. Additional Resources

    The Act contains several features not currently in the 
acknowledgment regulations. The Act would provide the AS-IA 
with an Independent Review and Advisory Board, to assist the 
AS-IA with unique evidentiary questions and provide independent 
peer review of acknowledgment determinations. The Act also 
authorizes grants to petitioners and interested parties that 
have a demonstrated need for assistance in participating in the 
acknowledgment process. The Act also contains a pilot project 
that draws upon the expertise of independent research 
institutions capable of assisting the AS-IA in the review of 
petitions. The pilot project authorizes grants to three 
institutions with established capabilities to do such research 
(typically academic or museum institutions).

Sec. 7. Inapplicability of FOIA

    The Act would make the Freedom of Information Act 
inapplicable to the acknowledgment process until petitions are 
fully documented and the AS-IA has published a notice that the 
petition is ready for review. The Act would also authorize the 
Secretary of Interior to request assistance from the Attorney 
General in responding to FOIA requests.

Sec. 8. Effect and Implementation of Decisions

    Generally, acknowledgment of a Tribe under this Act will 
not infringe on the rights of any other Tribes. Tribes 
acknowledged under this Act will have all of the 
responsibilities, obligations, privileges and immunities of 
other Indian Tribes, and be eligible for Federal programs.

Sec. 9. Regulations

    The Secretary is authorized to promulgate such regulations 
as are necessary to carry out this Act. The Secretary may also 
maintain in effect any current regulations that do not conflict 
with the provisions of this Act.

            COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

    On June 16, 2004, the Committee, in an open business 
session, considered S. 297 and approved a substitute amendment 
to the bill, and ordered S. 297, as amended, favorably reported 
to the full Senate with a recommendation that the bill do pass.

                   COST AND BUDGETARY CONSIDERATIONS

    The cost estimate for S. 297 as calculated by the 
Congressional Budget office, is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 30, 2004.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 297, the Federal 
Acknowledgment Process Reform Act of 2004.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mike Waters.
            Sincerely,
                                      Elizabeth M. Robinson
                               (For Douglas Holtz-Eakin, Director).
    Enclosure.

S. 297--Federal Acknowledgment Process Reform Act of 2004

    Summary: S. 297 would authorize the Department of the 
Interior (DOI) to make various changes to the government's 
process for acknowledging Indian tribes. The bill would:
           Establish an Independent Review and Advisory 
        Board to assist with acknowledgment determinations,
           Provide grants to petitioners and interested 
        parties to offset costs of the acknowledgment process,
           Establish a Federal Acknowledgment Research 
        Pilot Project to help review petitions for recognition, 
        and
           Exempt acknowledgment petitions from Freedom 
        of Information Act (FOIA) requests.
    CBO estimates that implementing S. 297 would cost $44 
million over the 2005-2009 period, subject to the appropriation 
of the necessary amounts. Enacting the bill would not affect 
direct spending or revenues.
    S. 297 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no direct costs on state, local, or tribal 
governments.
    Estimated cost to the Federal Government: CBO estimates 
that implementing the changes authorized by S. 297 would cost 
$44 million over the next five-year period, subject to 
appropriation of the necessary amounts. The estimated budget 
impact of this bill is shown in the following table. The costs 
of this bill fall within budget function 450 (community and 
regional development).

----------------------------------------------------------------------------------------------------------------
                                                                       By fiscal year, in millions of dollars--
                                                                    --------------------------------------------
                                                                       2005     2006     2007     2008     2009
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION


Changes to Federal Tribal Acknowledgment Process:
    Authorization Level............................................        5        5        5        5        5
    Estimated Outlays..............................................        5        5        5        5        5
Grants for Petitioners & Interested Parties:
    Estimated Authorization Level..................................        2        2        2        2        2
    Estimated Outlays..............................................        1        2        2        2        2
Federal Acknowledgment Research Pilot Project:
    Authorization Level............................................        3        3        0        0        0
    Estimated Outlays..............................................        3        3        0        0        0
Reimbursement to Attorney General:
    Authorization Level............................................        1        1        1        1        0
    Estimated Outlays..............................................        1        1        1        1        0
Total Changes:
    Estimated Authorization Level..................................       11       11        8        8        7
    Estimated Outlays..............................................       10       11        8        8        7
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that S. 
297 will be enacted near the beginning of fiscal year 2005 and 
that outlays will follow historical patterns of similar 
programs.

Changes to Federal Tribal Acknowledgment Process

    Section 4 would authorize the appropriation of $5 million 
for each fiscal year through 2013 to support DOI's tribal 
acknowledgment process. The agency currently spends about $1 
million a year on this activity. Assuming appropriation of the 
specified amounts, CBO estimates this provision would cost $5 
million annually and $25 million over the 2005-2009 period.

Grants for Petitioners and Interested Parties

    Subsection 6(b) would authorize the appropriation of 
amounts necessary to provide grants to offset costs incurred by 
an Indian group or interested party in supporting or opposing a 
petition for tribal recognition. Based on information from the 
Bureau of Indian Affairs, CBO estimates that about 10 new 
petitions will be filed for tribal recognition each year. 
Assuming grants of approximately $200,000 per petition to 
petitioners and interested parties, CBO estimates a total cost 
of $1 million in 2005 and $2 million annually thereafter for an 
estimated cost of $9 million over the 2005-2009 period.

Federal Acknowledgment Research Pilot Project

    Section 6(c) would authorize the appropriation of $3 
million for each of fiscal years 2004 through 2006 to provide 
grants to institutions that participate in a pilot project 
designed to help DOI review tribal recognition petitions. CBO 
estimates that implementing this provision would cost $6 
million over the 2005-2006 period, assuming appropriation of 
the specified amounts.

Reimbursement to Attorney General

    Section 7(c) would authorize the appropriation of $1 
million to the Department of Justice (DOJ) for each of fiscal 
years 2004 through 2008 for assistance with requests for 
information relating to tribal recognition petitions. This 
section would declare FOIA inapplicable to the recognition 
process until DOI completes its review. It also would allow DOI 
to request help from DOJ in responding to any FOIA requests 
concerning tribal recognition. CBO estimates that implementing 
this provision would cost $4 million over the 2005-2008 period, 
assuming appropriation of the authorized funds.
    Intergovernmental and private-sector impact: S. 297 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no direct costs on state, 
local, or tribal governments. A decision by the federal 
government to acknowledge an Indian tribe may significantly 
affect neighboring communities, including other tribes, but CBO 
cannot predict whether or how this legislation would affect the 
outcome of any particular case. It is likely, however, to 
shorten the process leading up to those decisions. The bill 
could benefit affected local governments as well as tribes by 
authorizing grants, which would be available both to tribes 
seeking acknowledgment and to other interested parties.
    Estimate prepared by: Federal Costs: Mike Waters. Impact on 
State, Local, and Tribal Governments: Marjorie Miller. Impact 
on the Private Sector: Selena Caldera.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

               REGULATORY AND PAPERWORK IMPACT STATEMENT

    Paragraph 11(b) of rule XXVI of the Standing Rules of the 
Senate requires that each report accompanying a bill evaluate 
the regulatory and paperwork impact that would be incurred in 
carrying out the bill. The Committee has concluded that S. 297 
will reduce regulatory or paperwork requirements and impacts.

                        EXECUTIVE COMMUNICATIONS

    The Committee has received the following communication from 
the Executive Branch regarding S. 297.

   Testimony of Aurene Martin, Principal Deputy Assistant Secretary--
                             Indian Affairs

    Good morning, Mr. Chairman and Members of the Committee. My 
name is Aurene Martin, Principal Deputy Assistant Secretary--
Indian Affairs at the Department of the Interior. I am here 
today to provide the Administration's testimony on S. 297, the 
``Federal Acknowledgment Process Reform Act of 2003.''
    The stated purposes of S. 297 include ensuring that when 
the United States acknowledges a group as an Indian tribe, that 
it does so with a consistent legal, factual and historical 
basis, using clear and consistent standards. Another purpose is 
to provide clear and consistent standards for the review of 
documented petitions for acknowledgment. Finally it attempts to 
clarify evidentiary standards and expedite the administrative 
review process for petitions through establishing deadlines for 
decisions and providing adequate resources to process 
petitions.
    While we agree with these goals, we do not believe S. 297 
achieves them. The Department therefore, does not support S. 
297. We are concerned that S. 297 would lower the standards for 
acknowledgment and not allow interested entities the 
opportunity to be involved in the process. We recognize the 
interest of the Congress in the acknowledgment process, and are 
willing to work with the Congress on legislative approaches to 
the Federal acknowledgment process. We believe that any 
legislation created should have standards at least as high as 
those currently in effect so that the process is open, 
transparent, timely, and equitable.
    The Federal acknowledgment regulations, known as 
``Procedures for Establishing that an American Indian Group 
Exists as an Indian Tribe,'' 25 C.F.R. Part 83, govern the 
Department's administrative process for determining which 
groups are ``Indian tribes'' within the meaning of Federal law. 
We believe these regulations provide a rigorous and thorough 
process.
    The Department's regulations are intended to apply to 
groups that can establish a substantially continuous tribal 
existence and, which have functioned as autonomous entities 
throughout history until the present. See 25 C.F.R. Sections 
83.3(a) and 83.7. When the Department acknowledges an Indian 
tribe, it is acknowledging that an inherent sovereign continues 
to exist.
    The Department is not ``granting'' sovereign status or 
powers to the group, nor creating a tribe made up of Indian 
descendants. We believe this standard as provided in 25 C.F.R. 
Part 83.3(a) needs to be maintained.
    Under the Department's regulations, in order to meet this 
standard petitioning groups must demonstrate that they meet 
each of seven mandatory criteria. The petitioner must:
          (1) demonstrate that it has been identified as an 
        American Indian entity on a substantially continuous 
        basis since 1900;
          (2) show that a predominant portion of the 
        petitioning group comprises a distinct community and 
        has existed as a community from historical times until 
        the present;
          (3) demonstrate that it has maintained political 
        influence or authority over its members as an 
        autonomous entity from historical times until the 
        present;
          (4) provide a copy of the group's present governing 
        document including its membership criteria;
          (5) demonstrate that its membership consists of 
        individuals who descend from the historical Indian 
        tribe or from historical Indian tribes that combined 
        and functioned as a single autonomous political entity 
        and provide a current membership list;
          (6) show that the membership of the petitioning group 
        is composed principally of persons who are not members 
        of any acknowledged North American Indian tribe; and
          (7) demonstrate that neither the petitioner nor its 
        members are the subject of congressional legislation 
        that has expressly terminated or forbidden the Federal 
        relationship.
    A criterion is considered met if the available evidence 
establishes a reasonable likelihood of the validity of the 
facts relating to that criterion.
    S. 297 would reduce the standards for acknowledgment by 
requiring a showing of continued tribal existence only from 
1900 to the present, rather than from first sustained contact 
with Europeans as provided for in 83.7(b) and (c). Other 
changes from the current regulatory standards would reduce the 
standard for demonstrating tribal existence even after 1900. 
This reduction in the standard deviates significantly from the 
position of the Department, as stated in the regulations, that 
the legal basis of Indian sovereignty is continuous political 
and social existence pre-dating European settlement of the 
territory that now constitutes the U.S. and extends without 
break to the present. The standard set out in S. 297 makes it 
more likely that groups without demonstrated tribal ancestry or 
historical tribal connection may be acknowledged.
    The bill also reduces the burden of producing evidence to 
demonstrate continuous existence by creating an extensive list 
of exceptions delineated in section 5(g) of S. 297. Section 
5(g) would provide that if an Indian group demonstrates by a 
reasonable likelihood that the group was, or is a successor in 
interest to a party to one or more treaties, that group would 
only have to show their continual existence from when the 
government expressly denied them services, even if this 
notification occurred only in the recent past. Under the 
Department's regulations, the burden rests with the petitioning 
group to show continuous existence; the bill shifts that burden 
to the Department. For example, if a group requested services 
from the government in 2000 and was denied those services, 
under this scheme, the group would only have to submit 
documentation from 2000 to the present. The Department would 
then have to demonstrate the group did not exist as a tribe 
prior to 2000.
    The Department supports a more timely decision making 
process, but does not believe that the factual basis of the 
decisions should be sacrificed to issue more decisions. The 
bill seeks to speed the process by narrowing the role of 
interested parties in the administrative process and by 
permitting only the petitioner to respond to proposed findings. 
These limits on outside party involvement, however, lessen the 
evidentiary basis of the decisions by not allowing interested 
parties the opportunity to submit arguments and evidence to 
rebut or support the proposed finding. Interested parties that 
believe that their views and concerns are not being given due 
consideration in the administrative process will likely 
challenge the decisions in court, which makes the process more 
costly and time consuming. The bill, however, appears to limit 
these challenges by permitting only petitioners to sue over the 
decisions. Specifically, the bill would provide for an appeal 
of the final determination by the petitioner within 60 days in 
the U.S. District Court for D.C.; however, it is unclear if 
this bill precludes an appeal by interested parties under the 
Administrative Procedure Act. Since Federal acknowledgment 
decisions impact the groups seeking tribal status, the local 
communities, states, and federally recognized tribes, the 
process must be equitable.
    With respect to deadlines and time lines, the Department is 
interested in exploring some type of sunset provision. In fact, 
in response to a November 2001, General Accounting Office (GAO) 
report on the ``effectiveness and consistency of the tribal 
recognition process'', the Department stated that we would 
support a legislative sunset rule that would establish a clear 
timeframe in which petitioners must submit final documented 
petitions and supporting evidence.
    The September 30, 2002, strategic plan and needs assessment 
of the Assistant Secretary in response to the GAO report 
outlined a number of changes that the Department is 
implementing, and changes that Congress can implement, to speed 
the process and to make it more equitable and transparent--
without changing the standard of continuous tribal existence. 
The Secretary in April 2004 requested from the Assistant 
Secretary--Indian Affairs a report outlining the progress on 
the implementation of the strategic plan.
    A number of changes have been made at the Department to 
implement the strategies identified in the Department's 
response to the GAO. First, previous acknowledgment decisions 
have been scanned on CD-ROM and are available to the public. 
Second, the use of Federal Acknowledgment Information Resource, 
or FAIR, has expanded. FAIR is a database system linking images 
of the documents in the record with the Department researchers' 
comments. It includes a chronology of events from the documents 
submitted and data extracts, and allows the tracking of persons 
involved in the group and their activities. FAIR has been 
praised by petitioners and interested parties alike for 
providing timely access to the record and researchers' 
analysis. The fact that this Administration has issued 14 
decisions further documents the success of these efforts. The 
bill does not address the improvements that the Department has 
made.


                               conclusion


    The Department believes that the acknowledgment of the 
existence of an Indian tribe is a serious decision for the 
Federal Government. It is of the utmost importance that 
thorough and deliberate evaluations occur before the Department 
acknowledges a group's tribal status, which carries significant 
immunities and privileges, or denies a group Federal 
acknowledgment as an Indian tribe.
    When the Department acknowledges an Indian tribe, it 
recognizes an inherent sovereign that has existed continuously 
from historic times to the present. These decisions have 
significant impacts on the petitioning group as well as on the 
surrounding community. Therefore, these decisions must be based 
on a thorough evaluation of the evidence using standards 
generally accepted by the professional disciplines involved 
with the process. The process must be open, transparent, 
timely, and equitable.
    Thank you for the opportunity to testify on S. 297 and the 
Federal acknowledgment process. I will be happy to answer any 
questions you may have.

                        CHANGES IN EXISTING LAW

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law are 
required to be made. The Committee has determined that there 
are no changes to existing law made by S. 297.

                                  
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